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Judicial pensions case back to Europe (again)

Earlier this month, the Supreme Court announced that the long-running O’Brien v Ministry of Justice case be sent back to the European Court of Justice (ECJ) for a decision on an interpretation of EU law. The Supreme Court had not been persuaded that either side was “clearly right”.

The case concerns a retired self-employed barrister who worked as a daily fee-paid part-time judge in the Crown Court from 1978 to 2005. When the UK Government introduced the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which gave part-time workers the equivalent pension rights as full-time workers, they expressly excluded fee-paid part-time judges from benefitting from the Regulations. O’ Brien argued that this was unlawful discrimination under the EU part-time workers’ directive, but the Minister of Justice ruled that EU regulations, which took effect on July 2000, did not apply to fee-paid part-time judges.

This ruling marks the second time that the case has been through the courts and ended up in Europe. Originally O’Brien brought proceedings against the Ministry of Justice, claiming an entitlement to a pension. The case reached the Supreme Court who referred it to the ECJ who upheld his challenge in 2013, after an eight year battle. The ECJ ruled he was entitled to a pension that equated to a comparable full-time judge.

The case then went back to an English tribunal to decide the amount of pension to which he was entitled. The current argument is whether Mr O’Brien’s pension should be calculated based on all of his employment with the Ministry of Justice dating back to 1978 or only from the date of the Regulations in 2000. The Supreme Court’s thoughts in the judgment issued yesterday were that his pension should be calculated on all his employment from 1978 onwards, but the EU law was not sufficiently clear and so they decided to submit the question to the ECJ again for further clarification.

Penny Cogher, Pensions lawyer at Irwin Mitchell said:

“Looking back now with today’s concerns with gig economy workers being treated like second-class citizens, this original exclusion looks extraordinary, as does the fact that it took eight years to gain the successful challenge in the ECJ. It is a shame the case continues to rumble on and the Supreme Court was not firmer in yesterday’s judgment about Mr O’Brien’s position. The cost of the Ministry of Justice pursuing this action, with two referrals to the ECJ, seems to be disproportionate and is probably not one which another UK employer would take.”

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